0120091753
03-30-2012
Rosa M. Ibarrondo, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Rosa M. Ibarrondo,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120091753
Hearing No. 510-2007-00329X
Agency No. FSA-2007-00112
DECISION
On March 10, 2009, Complainant filed a timely appeal from the Agency’s
February 4, 2009, Final Agency Decision (FAD) concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq. The Commission accepts this
appeal pursuant to 29 C.F.R. § 1614.405(a). The Commission AFFIRMS
the Agency’s FAD.
ISSUES PRESENTED
The issue presented in this appeal is whether the Agency correctly found
that it did not discriminate against Complainant as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a temporary employee for the Agency in Puerto Rico; she began her service
in December 1998, at the Lares Field Office (LFO).1 On or about November
7, 2006, Complainant contacted the Agency’s EEO office, and, on December
5, 2006, she filed an EEO complaint alleging that the Agency discriminated
against her on the bases of parental status, marital status, sex (female),
age (42), and in reprisal for prior protected EEO activity when:
1. on or about August 7, 2006, she was directly reassigned to the
Barranquitas Field Office;
2. on October 26, 2006, she learned that she was not selected for the
position of Program Technician, CO-1101-05/07, located in the Adjuntas
Field Office, advertised under Vacancy Announcement Number UK-120573
PR-CD; and
3. on November 13, 2006, she was reassigned to the Corozal Field Office.
On May 10, 2007, following the investigation, the Agency provided
Complainant a copy of the report of investigation (ROI) and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, however, in September 2008,
she withdrew her request. Subsequently, this matter was remanded to
the Agency for decision.
On February 4, 2009, the Agency issued a FAD. The Agency found that with
regard to claim 1, Complainant failed to timely contact an EEO Counselor
on the matter and dismissed the claim. With regard to claim 2 and 3,
the Agency determined that Complainant failed to demonstrate that she
was discriminated against as alleged. Complainant appealed the FAD to
the Commission. Neither party submitted timely statements on appeal.2
ANALYSIS AND FINDINGS
Procedural Matter
The Commission’s regulations require that a Complainant bring her
complaint to the attention of an EEO counselor within 45 days of an
alleged discriminatory event or the effective date of an alleged
discriminatory personnel action. 29 C.F.R. §1614.105(a)(1).
If Complainant contacts an EEO counselor more than 45 days following
the events identified in her complaint and fails to offer an acceptable
explanation or justification for the delay or any other reason to
extend the time period, the EEO counselor contact is not timely and
the complaint may be dismissed. See 29 C.F.R. § 1614.105(a)(2);
29 C.F.R. § 1614.604(c); 29 C.F.R. § 1614.107(a)(2).
The Agency dismissed claim 1 for untimely contact with an EEO counselor.
The record shows that Complainant first contacted an EEO counselor on
November 3, 2006, regarding claim 1 which occurred on August 7, 2006.
We find this is well outside the requisite 45 days. Complainant failed
to offer an acceptable explanation or justification for the delay or
any other reason to extend the time period. Accordingly, we find that
the Agency properly dismissed claim 1 for untimely contact with an
EEO counselor.
Additionally, we note that with regard to Complainant’s claims of
marital status and parental status discrimination, the record reveals that
“Departmental Regulations 4300-6, Civil Rights Policy for the Department
of Agriculture, prohibit discrimination against USDA employees based
upon marital status.” ROI at 47. The Agency noted in the FAD that
they “are not covered by any Federal antidiscrimination statute and are
processed under the EEO complaint process, only within the U.S. Department
of Agriculture, DR 4300-007.” FAD at 15. Notwithstanding the above,
the Complainant is advised that marital status and parental status
discrimination are not among the protected bases covered by Federal EEO
laws and therefore are not within our purview. 29 C.F.R. 1614.101(a).
Accordingly, we decline to address these bases.
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
To prevail in a disparate treatment claims such as these, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion,
and it is her obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Claim 2
In regard to the nonselection, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the Selecting Official (SO), who is also the State Executive Director,
explained that he considered the recommendations and reports from each
panel member, the experience of the candidates, and their profiency in
English and Spanish.3 Considering these three areas, he concluded that
the selectee was the most qualified candidate. Complainant did not have
a successful interview, could not articulate her answers in English,
and she lacked the knowledge and skills for the position. The SO’s
statements regarding the selectee’s and Complainant’s qualifications
and interviews were corroborated by other members of the interview panel.
Assuming Complainant established a prima facie case of discrimination
based on sex and age, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, we now turn to Complainant’s
burden to prove that the Agency was motivated by discriminatory animus.
In order to do so, Complainant must proffer evidence to show that the
Agency’s reasons are not worthy of credence. In a nonselection case,
pretext may also be shown by proving that Complainant's qualifications
are observably superior to those of Selectee. Bauer v. Bailor, 647 F.2d
1037, 1048 (10th Cir. 1981).
In order to prove pretext, Complainant stated in her affidavit that she
was on the Best-Qualified list; she exceeded the required skills for
the position; she had 8 years of experience in FSA’s Farm and Loan
Program; her appraisals were “Superior” and “Outstanding;” and
she received cash awards for her contribution. Complainant also stated
that she performed work of a technician and had already been trained
for the position. In 2000, 2001, and 2002, the Complainant received a
cash award for her contributions at the Lares Office and for her overall
involvement in the Farm Loan programs. Nevertheless, a review of the
record shows that Complainant’s qualifications were not observably
superior as compared to the selectee. Further, the record establishes
that Complainant’s interview was not as successful as the selectee’s.
We can discern no evidence from the record that demonstrates the
Agency’s articulated reasons are pretext for discrimination.
Claim 3
As to her reassignment to the Corozal Field Office, SO stated that an
employee of the Corozal Field Office was hired to work in the Adjuntas
Office. As a result, the Corozal Field Office required temporary
assistance. Because the SO knew that Complainant preferred to work
closer to her home than her assignment at the time to the Barranquitas
Field Office, the SO considered Complainant for the temporary assignment
at the Corozal Field Office. The SO provided that Complainant was given
the first opportunity to move to the Corozal Field Office because the
Corozal Field Office was closer to her home.
Again, because we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, the burden shifts to
Complainant to prove that the Agency was motivated by discriminatory
animus. We find that Complainant failed to do so. Nothing in the record
shows that the Agency was motivated by a discriminatory reason. Instead,
it appears that SO considered Complainant for the reassignment in order
to reduce her commute. Accordingly, we concluded that Complainant did
not demonstrate, by a preponderance of the evidence, that the Agency's
explanation was a pretext for discrimination.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency’s FAD,
because Complainant failed to demonstrate by the preponderance of the
evidence that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__3/30/12________________
Date
1 A temporary employee is hired under a contract to work as needed by
the Agency when a field office requires temporary assistance; when the
work level returns to normal, the temporary employee is terminated,
unless another field office needs additional support.
2 We note that the record contains a letter from Complainant dated
April 24, 2009. 29 C.F.R. § 1614.403(d) provides that any statement or
brief filed on behalf of a complainant in support of the appeal must be
submitted to the Office of Federal Operations within 30 days of filing
the notice of appeal. The record reflects that Complainant filed her
notice of appeal on March 10, 2009 and filed supporting statements on
April 24, 2009. Therefore, the Commission declines to consider the
April 24, 2009 statement, as it was untimely. 29 C.F.R. § 1614.403(d).
3 The Vacancy Announcement indicated that “[T]he selectee must be
proficient in reading, understanding, writing and speaking both Spanish
and English.”
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0120091753
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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